FL Case Law Summaries – 7/25/16
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1ST DCA ORDERS
Adan Luciano, Jr. v. Adecco/Broadspire
Appeal of the Order from JCC Geraldine Hogan
DCA Order Date: July 20, 2016
Case: 1D15-5626; D/A: 9/12/2011
Appellant’s Counsel: Kimberly A. Hill
Appellee’s Counsel: H. George Kagan
Briefly: TAXABLE COSTS – The 1st DCA reversed JCC Hogan and determined the JCC abused her discretion in admitting the Employer/Carrier’s attorney’s testimony regarding the amount of costs paid by the Carrier over claimant’s hearsay objection.
Summary: The claimant did not dispute the Employer/Carrier prevailed at trial, but contested the amount of taxable costs and argued the JCC abused her discretion in refusing to strike as hearsay the Employer/Carrier’s attorney’s testimony about the amount of costs.
The DCA agreed and noted the E/C’s counsel testified about the amount of costs paid by the Carrier and relied completely on the payout ledger and invoices which were excluded from evidence.
The DCA held that the testifying attorney’s knowledge as to the amount of costs was taken directly from the excluded documents, and the problem with this testimony is not the fact of the documents’ exclusion, but rather the attorney’s complete reliance on those documents. The DCA emphasized they do not wish to limit an attorney’s ability to testify as to the information about which he or she has personal knowledge, but personal knowledge was lacking in this particular case.
The DCA suggested that perhaps a better practice in this situation would be for the Employer/Carrier to establish that certain bills in a certain amount were actually paid by presenting testimony of an adjuster or records custodian.
JCC ORDERS
Jumeau Jacinthe v. Loews Hotels at Universal Orlando/CNA Insurance Company
JCC Sculco; Orlando District; Order Date: July 19, 2016
OJCC Case: 13-005483TWS; D/A: 10/14/2012
Claimant’s Counsel: D. Robert Wells
Employer/Carrier’s Counsel: Kathryn L. Holloway & James F. Kidd
Briefly: MAJOR CONTRIBUTING CAUSE; COMPENSABILITY – JCC Sculco denied the claims for compensability and payment of medical and disability benefits and found the claimant presented no medical evidence establishing an occupational cause for the infection and subsequent amputation of his left ring-finger injury.
Summary: The claimant testified he had an accident at work when he tried to catch some falling plates and injured both hands. He reported the incident to security, where both hands were washed with a liquid and a bandage was placed on his left ring-finger. The claimant testified he continued to work and his right hand got better, but his left hand became more painful and started to swell over the next two months.
The JCC accepted the Employer/Carrier’s argument that claimant was required to prove compensability of his claimed left ring-finger injury and amputation by presenting medical evidence establishing occupational cause. The JCC found the Employer/Carrier’s IME physician, Dr. Christiansen, concluded the claimant’s infection and subsequent amputation was not related to the incident reported by the claimant at work. The JCC also noted that Dr. Sneddon, an examining physician, opined he cannot relate the incident reported by the claimant to the left hand injury. The JCC found that, while claimant’s lay testimony is arguably sufficient to establish the concurrence of a skin break to his left hand on October 14, 2012, it is not sufficient to connect the incident with the subsequent infection and resulting amputation.
The JCC distinguished the cases cited by the claimant, including the cases of Perez v. Southeastern Freight Lines, Inc., 159 So. 3d 412 (Fla. 1st DCA 2015), and Cespedes v. Yellow Transportation, 130 So. 3d 243 (Fla. 1st DCA 2013), on the grounds that in those cases, the Employer/Carriers denied treatment for conditions they had previously accepted as compensable. Here, the Employer/Carrier never accepted the claimant’s left hand injury as compensable, and, while Dr. Sneddon evaluated claimant’s left hand, the Employer/Carrier never provided treatment. Further, the JCC found the Employer/Carrier denied compensability of the claimant’s left hand injury well within the 120 days of Dr. Sneddon’s evaluation.
Maria Aguila-Franquiz v. Progressive Employer Management/AmTrust North America of Florida
JCC Kerr; Miami District; Order Date: July 19, 2016
OJCC Case: 15-030084MGK; D/A: 11/8/2015
Claimant’s Counsel: Albert Marroquin
Employer/Carrier’s Counsel: William Goran
Briefly: NOTICE OF INJURY – JCC Kerr denied the claim for medical and disability benefits and found the claimant suffered an accident in the course and scope of her employment, but she did not notify her Employer of the accident within 30 days and presented no evidence that her failure to report the injury was excused by any of the four statutory exceptions.
Summary: The JCC concluded that while the claimant notified the Employer of her pain, she did not notify the Employer within 30 days that the pain was due to an accident at work. The JCC noted there are four statutory exceptions to the 30 day notice including the following: 1) the Employer/Carrier had actual knowledge of the injury; 2) the employee could not have known the injury was work-related without a medical opinion; 3) the Employer did not put its employees on notice of the statutory requirements; and 4) the Judge of Compensation Claims finds exceptional circumstances that justify failure of notice.
The JCC found the claimant provided no evidence her failure to report her injury as work-related was excused by any of the four statutory exceptions and concluded the claimant did not notify her Employer that her injury arose out of and in the scope of her employment within 30 days.
The JCC rejected the claimant’s testimony that she told both her supervisors and Dr. Bolufer her pain was related to an accident at work. The JCC accepted the supervisor’s testimony that claimant told her she was having pain, but did not tell her it was related to any incident at work. The JCC also found Dr. Bolufer’s records failed to show any relationship between the claimant’s pain and work activities. Dr. Bolufer testified he would have asked the claimant, as he does with all his patients, if her symptoms were related to trauma of any kind, and if so, he would have documented same. His records contain no such documentation.
Maria E. Colon v. Livewell Operations I, Inc./FHM Insurance Company
JCC Lazzara; Ft. Lauderdale District; Order Date: July 20, 2016
OJCC Case: 14-007551JJL; D/A: 12/13/2013
Claimant’s Counsel: Scott C. Cohen
Employer/Carrier’s Counsel: Esther Zapata Ruderman
Briefly: CLAIMANT-PAID ATTORNEY’S FEES – JCC Lazzara denied the request for approval of claimant-paid attorney fees in addition to the fee payable out of the claimant’s washout settlement and found that no additional fees were earned or due to claimant’s counsel.
Summary: A Motion for Payment of Undisputed Attorney’s Fees by the employee was filed requesting that an additional employee-paid attorney’s fee of $3,000.00 be paid out of the claimant’s washout settlement of $22,750.00. This $3,000.00 fee would be in addition to the statutory fee of $3,025.00, based upon the washout settlement monies. The basis for the additional claimant-paid fee was purportedly for obtaining authorization of surgery valued at over $52,747.52.
The JCC reviewed the evidence, including the Attorney Fee Data Sheet and payout ledger, and found there were no documents, pleadings, or other evidence to support any allegations that claimant’s counsel secured authorization of surgery. Additionally, the JCC found there was no stipulation or other documentation reflecting the Employer/Carrier agreed to provide surgery because of counsel’s intervention. The JCC found there was nothing to suggest resistance on the part of the carrier, and that they would not have otherwise authorized the surgery once they received the doctor’s recommendation.
The JCC rejected claimant’s counsel’s statements at hearing and affidavit of time as not credible or relevant to the attempt to extract an additional $3,000 out of the claimant’s settlement.
Francisco Ortiz v. American Airlines/Sedgwick CMS
JCC Hill; Gainesville District; Order Date: July 20, 2016
OJCC Case: 12-015584MRH; D/A: 8/17/2011
Claimant’s Counsel: Toni Villaverde
Employer/Carrier’s Counsel: Michael Hernandez
Briefly: WORK PRODUCT PRIVILEGE – JCC Hill denied the Employer/Carrier’s Motion to Compel production of correspondence from claimant’s counsel to claimant’s IME physician containing claimant’s counsel’s mental impressions.
Summary: The Employer/Carrier sought an un-redacted email from claimant’s counsel to claimant’s IME physician, Dr. Ray. The JCC conducted an in-camera inspection of the un-redacted email and concluded the redacted portions of the email did not contain information that would impact the Employer/Carrier’s defenses or analysis of the case. The redacted portions only contained claimant’s counsel’s mental impressions and are privileged.
The JCC acknowledged the Employer/Carrier is entitled to Dr. Ray’s opinions and what Dr. Ray considered in reaching his opinions. However, the JCC found the redacted portions of the email did not contain Dr. Ray’s opinion and solely contained claimant’s counsel’s mental impressions. The JCC noted that nothing precluded the Employer/Carrier from cross-examining Dr. Ray as to anything that impacted his opinions.
The JCC granted claimant’s Motion for attorney’s fees and costs for prevailing against the Motion to Strike Dr. Ray.
Raul Amaro v. Barnett Management, Inc.
JCC Weiss; Ft. Myers District; Order Date: July 20, 2016
OJCC Case: 13-027235KAS; D/A: 8/19/2013
Claimant’s Counsel: Steven M. Meyers
Employer’s Counsel: Daniel Stoller
Briefly: ATTORNEY’S FEES – JCC Weiss awarded attorney’s fees based upon 54.6 hours of attorney time at an hourly rate of $275, resulting in an attorney’s fee of $15,000.15 for obtaining benefits in the amount of $6,200.00.
Summary: The benefits obtained in this case included $5,000.00 for epidural injections and $1,200.00 for past indemnity benefits. Employer’s counsel explained that the delay in providing the epidural injections was due, in part, to the doctor who recommended the injections not performing them, but instead referring the claimant to another physician who would not agree to accept the fee schedule. The Employer argued that the fee claimant’s counsel sought would result in “unjust enrichment”.
The JCC applied the Lee Engineering factors and noted that defense counsel did not offer any testimony to contradict the testimony of claimant’s counsel and that the Employer’s response merely stated in conclusory fashion that the fee would be too high (“unjust enrichment”) and the Employer failed to challenge any specific time claimant’s counsel claimed he expended.
Further, the JCC found the Employer denied authorization of the injections for six months before they agreed to authorize the injections and it took them over eight months to find a doctor who agreed to perform the injections and accept the fee schedule and, actually, it was claimant’s counsel who found the doctor.
Sarah Hadley v. Saks Fifth Avenue/Sedgwick CMS, Broadspire
JCC Sojourner; Lakeland District; Order Date: July 21, 2016
OJCC Case: 13-026530MES; D/A: 7/3/2012
Claimant’s Counsel: Jeffrey M. Friedman
Employer/Carrier’s Counsel: David C. Halpern & Peter Manso
Briefly: ONE-TIME CHANGE IN PHYSICIANS; MEDICAL MALPRACTICE – JCC Sojourner denied the claim for a one-time change of physician and found Chapter 440 does not require authorized physicians to carry malpractice insurance, nor does the State of Florida require physicians to carry malpractice insurance.
Summary: The claimant rejected the one-time change of physician authorized by the Employer/Carrier on the grounds the doctor did not carry medical malpractice insurance. The claimant was concerned about the availability of a legal remedy in the event of an adverse result as there may be a limit on the recovery available from the physician, even though it is not a legal impediment to a physician’s ability to practice medicine.
The JCC rejected the claimant’s argument and noted that injuries sustained while pursuing medical treatment for compensable injuries are deemed compensable, DOT v. King, 554 So. 2d 1192 (Fla. 1st DCA 1989). The JCC found the claimant is not without remedies and it is not within the authority of a JCC to graft changes upon a statutory provision.
Gabrielle Walker v. Florida Sheriff’s Youth Ranches, Inc./Bridgefield Employers Insurance Company
JCC Sojourner; Lakeland District; Order Date: July 21, 2016
OJCC Case: 14-010892MES; D/A: 10/4/2013
Claimant’s Counsel: Mark G. Capron
Employer/Carrier’s Counsel: Curt L. Harbsmeier
Briefly: MEDICAL NECESSITY – JCC Sojourner ordered the Employer/Carrier to authorize right hip arthroscopy and accepted the testimony of the authorized treating orthopedist that it is reasonable and medically necessary for the claimant to undergo arthroscopic surgery in order to determine whether the claimant sustained a labral tear and whether a repair can be done which may provide relief.
Summary: The JCC accepted the opinion of the authorized orthopedic surgeon, Dr. Watson, and found that Dr. Watson reviewed the MR arthrogram itself and did not solely rely on a report and explained the procedure was reasonable in light of the claimant’s symptoms and findings.
The JCC rejected the Employer/Carrier’s argument that because the surgery was “elective”, it was not “medically necessary.” The JCC found that “elective” surgery simply means the patient may proceed or may choose to live with the symptoms as they are, but that “medically necessary” indicates relief can be had for symptoms suffered by a claimant or that a condition can be corrected or ameliorated.
Joseph Edward Ferrara v. River Rats Cafe
JCC Rosen; Tampa District; Order Date: July 21, 2016
OJCC Case: 15-004618SLR; D/A: 11/9/2004
Claimant’s Counsel: Bradley G. Smith
Employer’s Counsel (Uninsured): Windy L. Wilkerson & Michael Cantrell
Briefly: MISREPRESENTATION DEFENSE – JCC Rosen found the claimant intentionally misrepresented his past medical condition to multiple medical examiners in violation of F.S. §440.105.
Summary: The JCC noted the claimant was confronted with numerous discrepancies between his deposition testimony and his testimony at the final hearing.
The JCC found the testimony of the claimant to be wholly incredible and untrustworthy from the onset of the claim. JCC Rosen found the claimant failed to give a complete medical history to both independent medical examiners with regard to numerous low back injuries, numerous diagnostic studies including multiple MRI scans, and continued treatment for his low back complaints during at least 2013-2014, prior to the date of accident. The JCC found that claimant clearly intended to make statements to the medical examiners that included or excluded history as the claimant chose.